Grutter's First Amendment

131 Pages·2016·7.02 MB·English

by  Paul Horwitz

Boston College Law Review
Volume 46
Article 1
Issue 3Number 3
5-1-2005
Grutter's First Amendment
Paul Horwitz
[email protected]
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GRUTTER'S FIRST AMENDMENT
PAUL HORWITZ*
Abstract: In Grutter v. Bollinger, the Supreme Court noted that universi
ties "occupy a special niche" in the First Amendment, and suggested
that they are entitled to a substantial degree of institutional autonomy.
This Article evaluates the First Amendment implications of this ruling.
It explores three possible First Amendment readings of Grutter. First,
Grutter may be viewed as a charter of institutional autonomy for
universities. That reading carries a variety of implications, not all of
which may be equally pleasing to Grutter's supporters. Second, Grutter
may be read as advancing a substantive view of academic freedom based
on its value to democratic deliberation. This ruling carries significant
implications too, but it is hard to square with the larger body of First
Amendment jurisprudence or with the concept of professional
academic freedom itself. A third reading of Grutter's First Amendment
carries more profound and attractive implications: it suggests the Court
may be willing to abandon its preference for neutral rules over social
facts in First Amendment jurisprudence, and to take seriously the role
of "First Amendment institutions."
INTRODUCTION 462
I. PROFESSIONAL AND CONSTITUTIONAL ACADEMIC FREEDOM 472
A. The Roots of Professional Academic Freedom 472
B. The Roots of Constitutional Academic Freedom 481
1. The Pre-Regents of the University of California v. Bakke Cases:
The Birth Pangs of Constitutional Academic Freedom 481
2. Bakke " . . . Who May Be Admitted to Study" 491
3. Grutter: Revisiting Constitutional Academic Freedom 494
H. TAKING GRUTTER SERIOUSLY 502
A. Institutional Autonomy and Its Implications 503
* Associate Professor, Southwestern University School of Law. Much of the work for
this Article was completed during a year as Visiting Assistant Professor at the University of
San Diego School of Law, which I thank for resources and support. I am grateful to the
faculties of the University of San Diego School of Law, the Southwestern University School
of Law, and the New England School of Law for the opportunity to present earlier drafts of
this Article, and to Larry Alexander, Carl Auerbach, Chris Cameron, George Dargo, David
Fontana, Danielle Hart, Kelly Horwitz, Mike Ramsay, Angela Riley, Connie Rosati, Maimon
Schwarzchild, Kelly Slater, Steve Smith, Fred Zacharias, and others for useful comments,
and Main Cohen and Andy Hayden for research assistance. Special thanks go to the li-
brary staff of the University of San Diego School of Law.
461
462 Boston College Law Review [Vol. 46:461
1. Hate Speech on Campus 503
2. Content Distinctions on Campus, with Special Attention
to Religious Speech 511
3. The Solomon Amendment 516
4. The Academic Bill of Rights 533
5. Race-Based Scholarships 537
6. Single-Sex Schools, Historically Black Colleges and Uni-
versities, and Other Exclusive Educational Institutions 539
7. Conclusion 546
B. Grutter 's First Amendment as Substantive Commitment 549
C. Is Grutter 's First Amendment Consistent with the Court's First
Amendment Jurisprudence? 556
M. TAKING FIRST AMENDMENT INSIII'UlIONS SERIOUSLY 563
A. Introduction 563
B. Grutter and First Amendment Institutions 567
C. Democratic Experimentalism, Reflexive Law, and Grutter 's First
Amendment 574
D. Questions and Implications, with a Digression on State Action 579
CONCLUSION 588
INTRODUCTION
No shortage of ink has already been spilled on the U.S. Supreme
Court's decisions in the affirmative action cases, Grutter v. Bollinger
and Gratz v. Bollinger.1 And little imagination was needed to predict
how much of that commentary would run—as praise for the Court's
cautious, Solomonic balancing of the conflicting concerns of formal
equality and racial justice, or as condemnation of an unprincipled,
unsound departure from fundamental principles of equal justice un-
der law.2 In any event, the subject of the symposia, colloquia, special
1 See Grutter v. Bollinger, 539 U.S. 306 (2003); Gratz v. Bollinger, 539 U.S. 244 (2003).
2 See; e.g., Joel L. Selig, The Michigan Affirmative Action Cases: Justice O'Connor, Bakke Re-
dux, and the Mice That Roared but Did Not Prevail, 76 TEMP. L. Rev. 579, 579 (2003); Deborah
Jones Merritt et al., Growing Beyond Grutter, Juats-r (Sept. 5, 2003), at http://jurist.Iaw.pitt.
edu/forum/symposium-aa/merritt.php ("Some praised Grittier and its companion case,
Gratz v. Bollinger, as a lawyerlike compromise. Others scorned the opinions as a patchwork
that confused admissions officers and the public."); E-mail from Walter Dellinger, Head of
National Appellate Practice, O'Melveny & Myers, and Douglas B. Maggs Professor of Law,
Duke University, to Dahlia Lithwick, Senior Editor of SLATE ( June 25, 2003, 08:44 PST), at
http://slate.com/id/2084657/entry/2084857 (praising Grutter and Gratz precisely for
their Solomonic wisdom and arguing that "[w]hen it comes to an issue like this Su-
preme Court adjudication isn't the same as excelling at Logical Puzzles 101.... [because]
the most logical answers aren't necessarily the right ones"); see also Neal Devins, Explaining
20051 Grutter 's First Amendment 463
issues, and other countless discussions devoted to these cases 5 has
been clear: Grutter and Gratz belong to Fourteenth Amendment case
law, subgenus affirmative action.
I propose to leave that debate to one side. Notwithstanding the
expertise and good intentions of many of those constitutional schol-
ars who have joined one side or another of the affirmative action de-
bate, a good deal of the discussion of Grutter and Gratz has simply re-
hearsed positions long since fixed on this issue. Perhaps it is in the
nature of the subject. As a matter of policy and morality, affirmative
action does not lend itself to a principled resolution that easily can
command popular consensus. As a matter of constitutional law, the
capacious terms of the Constitution, the meandering course of the
Court's opinions, and the opaque nature of the Court's discussions
invariably lead the legal debate back to the intractable moral and po-
litical questions.4 Discussion about affirmative action may simply be
one more illustration of a basic principle of legal discourse—that the
political heat of an issue is inversely proportional to the light that le-
gal debate can shed upon it.
This Article, then, is not a brief for or against affirmative action,
in higher education or elsewhere. It is not, at least in express terms, a
Grutter v. Bollinger, 152 U. PA. L. REV. 347, 381-82 & nn.163-66 (2003) (collecting posi-
the public reactions to Grutter); Joel K. Goldstein, Beyond Bakke: Grutter—Gratz and the
Promise of Brown, 48 ST. Louis U. U. 899, 901 (2004) (calling the decisions "a triumph for
those advocating racial preferences in admissions decisions"); Goodwin Liu, Brown, Bol-
linger, and Beyond, 47 How. LJ. 705, 705 (2004) (noting that "civil rights advocates across
the country proclaimed victory' following the issuance of Gruffer). For remarks that are
broadly critical of Grutter, see generally Larry A. Alexander & Maimon Schwarzchild, Grut-
ter or Otherwise: Racial Preferences and Higher Education,2 1 CoNs•r. COMMENT. 3 (2004); Abi-
gail Thernstrom & Stephan Thernstrom, Secrecy and Dishonesty: The Supreme Court, Racial
Preferences, and Higher Education, 21 CONST. COMMENT. 251 (2004). For discussions of Gritt-
ier that are also critical but come from the other end of the spectrum, see generally Bar-
bara J. Flagg, Diversity Discourses, 78 TuL. L. REV. 827 (2004); Dania Roithmayr, Tacking Left:
A Radical Critique of Grutter, 21 CONST. COMMENT. 191 (2004); Girardeau A. Spann, The
Dark Side of Grutter, 21 CONST. COMMENT, 221 (2004).
For a sampling, see generally Affirmative Action in the 21st Century: Reflections on Grut-
ter v. Bollinger and Gratz v. Bollinger: Special Issue, 30 HASTINGS CONST. L.Q. 425 (2003);
Affirmative Action Symposium, 28 S. ILL. U. LJ. 519 (2004); Symposium, From Brown to Bakke
to Grutter: Constitutionalising and Defining Racial Equality, 21 CONST. COMMENT. 1 (2004);
Symposium, From Brown to Grutter: Affirmative Action and Higher Education in the South, 78
Tut. L. REV. 1765 (2004); Symposium, Law, Ethics, and Affirmative Action in America, 72 U.
Cm. L. Rev. 873 (2004); Symposium, On Grutter and Gratz: Examining 'Diversity" in Educa-
tion, 103 COLUM. L. REV. 1588 (2003).
4 For broadly similar conclusions from differing points along the political spectrum, see
RICHARD A. POSNER, THE PROBLEMATICS Or MORAL AND LEGAL THEORY 139-40 (1999); CASS
R. SUNSTEIN, ONE CASE AT A TIME: JUDICIAL MINIMALISM ON THE SUPREME COURT 117-36
(1999).
464 Boston College Law Review [Vol. 46:461
Fourteenth Amendment article at all. The question raised by this Ar-
ticle is quite different.
To uncover that question, it may help to recall that Grittier ad-
dressed the constitutionality of affirmative action not once and for all,
but in a limited context. It asked only whether there is a "compelling
state interest in student body diversity" in "the context of higher educa-
tion."° The answer to that Fourteenth Amendment question—whether
the University of Michigan Law School's (the "Law School") race-
conscious admissions policy withstood the strict scrutiny required by
the Court's equal protection jurisprudence—depended in turn on cer-
tain important assertions about the First Amendment. Briefly restated,
the Court reasoned as follows:
• Universities "occupy a special niche in [the] constitutional tradi-
tion" of the First Amendment.°
• That special role provides universities a substantial right of "edu-
cational autonomy," within which public higher educational insti-
tutions are insulated from legal intrusion.' Within that autono-
mous realm, universities are entitled to deference when making
academic decisions related to their educational mission.°
• Educational autonomy includes "[t] he freedom of a university to
make its own judgments as to . . . the selection of its student
body."9 More specifically, a public university has a compelling in-
terest in selecting its student body in order to ensure a "robust
exchange of ideas,"1D which may be achieved by selecting a "di-
verse student body.""
• The Court's scrutiny of the Law School's admissions program, al-
though ostensibly strict in nature, must take into account this
compelling First Amendment-based interest."
• Ergo, the Law School's race-conscious admissions policy withstands
Fourteenth Amendment strict scrutiny, given the compelling state
5 Gruffer, 539 U.S. at 328.
5 Id. at 329.
7 Id.
Sec id.
9 Id. (quoting Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 312 (1978) (opinion
of Powell, p) (internal quotation marks omitted).
Gruner, 539 U.S. at 329 (quoting Bakke, 438 U.S. at 313 (opinion of Powell, J.) (quot-
ing Keyishian v. Bd. of Regents of the Univ. of the State of N.Y., 385 U.S. 589, 603 (1967)))
(internal quotation marks omitted).
" Isde.e a
is
20051 Grutter 's First Amendment 465
interest of "student body diversity" and the level of deference ac-
corded the university in tailoring its admission policies.
Much debate over the University of Michigan decisions has passed
lightly over these assertions or focused on them primarily for their role
in the larger Fourteenth Amendment discussion. But the implications
of this decision—that "attaining a diverse student body is at the heart
of [a university's] proper institutional mission," and that there is a
strong First Amendment interest in "educational autonomy"—ought
to be of equal interest to First Amendment scholars."
If history is any guide, however, Grutter is unlikely to attract much
sustained attention as a First Amendment case. Consider the fate of
Regents of the University of California v. Bakke. 15 Although Bakke has en-
tered the legal canon and gained public notoriety for its central role
in the affirmative action debate, Justice Lewis Powell's pivotal opinion
in that case is also grounded in the First Amendment, as the Grutter
Court recognized."' As one of the leading students of the relationship
between American constitutional law and academic freedom has ob-
served, Bakke represented a significant shift in the constitutional law
of academic freedom: a shift from a concept of academic freedom as
an individual right, to "a concept of constitutional academic freedom
as a qualified right of the institution to be free from government inter-
ference in its core administrative activities, such as deciding who may
teach and who may learn."17
Yet Bakke receives virtually no mention in any of the leading First
Amendment treatises and casebooks." Indeed, most of these promi-
is Id. at 325.
14 See id. at 328, 329.
IB 438 U.S. 265 (1978).
18 See Grutter, 539 U.S. at 329 (noting that Justice Lewis Powell's opinion in Bakke "in-
voked our cases recognizing a constitutional dimension, grounded in the First Amend-
ment, of educational autonomy"). The parallels between Bakke and Gru tter are all the more
striking in that they extend to the level of public reaction. Sce John C. Jeffries, Jr., Bakke
Revisited, 55 SUP, CT. REV. I, 8-10 (2003) (discussing the public reaction to Bakke, which
split between praise for Justice Powell's Solomonic opinion and criticism of the opinion
for being disturbingly unreasoned).
17 J. Peter Byrne, Academic Freedom: A "Special Concern of the First Amendment," 99 YALE
L.J. 251, 257 (1989) (emphasis added).
la In fact, I could find only one mention of Bakke in any of the many casebooks and
treatises devoted solely to First Amendment law that I surveyed. See I RODNEY SmoLLA,
SMOLLA AND NIMMER ON FREEDOM OF SPEECH §§ 12:21, 13:20, 17:34 (1996). Indeed, al-
though some casebooks and treatises pay attention to issues concerning free speech in the
public school context, few devote any space at all to First Amendment issues dealing with
academic freedom in higher education.
466 Boston College Law Review [Vol. 46:461
nent texts deal briefly or not at all with the entire subject of academic
freedom, on which both Bakke and Grutter are grounded.19 Nor have
the law reviews done much to fill the gap. Although there is obviously
an extraordinary amount of legal scholarship dealing with Bakke as a
Fourteenth Amendment case and a significant but somewhat isolated
volume of legal scholarship dealing with academic freedom on its own
terms, very few scholars have dug deeply into the question of the rela-
tionship between Bakke—and now Grutter—and the First Amend-
ment.20 And those few treatments generally have not pressed the
question whether the First Amendment principles announced in
Bakke, and reaffirmed in Grutter, have (or should have) any applica-
tion beyond the narrow context of race-conscious admissions policies
in public higher education. That general reluctance to make a home
for Bakke and its newest progeny in First Amendment scholarship, let
alone to deal seriously with its implications, is unfortunate.
This Article aims to fill that gap. It proposes to take Grutter seri-
ously as a First Amendment case. It asks the following: What does Grut-
ter's First Amendment mean? What are the implications of its ap-
proach?
19 Cf. Neal Kumar Katyal, The Promise and Precondition of Educational Autonomy, 31 HAST-
INGS CONST. L.Q. 557, 557 (2003) (arguing that "[aicademic freedom has become some-
thing of a pariah concept").
20 A few treatments of this issue in the wake of Grutter have trickled out during the
long gestation of this Article. See generally J. Peter Byrne, The Threat to Constitutional Aca-
demic Freedom, 31 J.C. & U.L. 79 (2004); Luis Fuentes-Rohwer & Guy-Uriel E. Charles, In
Defense of Deference, 21 CONST. COMMENT. 133 (2004); Richard H. Fliers, Institutional Aca-
demic Freedom—A Constitutional Misconception: Did Grutter v. Bollinger Perpetuate the Confu-
sion?, 30 J.C. & U.L. 531 (2004); Katyal, supra note 19; Edward N. Stoner II & J. Michael
Showalter, Judicial Deference to Educational judgment: Justice O'Connor's Opinion in Grutter
Reapplies Longstanding Principles, as Shown by Rulings Involving College Students in the Eighteen
Months Before Grutter, 30 J.C. & U.L. 583 (2004); Leland Ware, Strict Scrutiny, Affirmative
Action, and Academic Freedom: The University of Michigan Cases, 78 'Pm.. L. REV. 2097 (2004).
Although these articles (and particularly the articles by Professors J. Peter Byrne and Neal
Katyal) are instructive, all of them focus primarily on the reading of Grutter discussed in
infra notes 212-396 and accompanying text, and not on other possible First Amendment
readings of Gruffer, as this Article does. In addition, Professors Katyal, Leland Ware, and
Luis Fuentes-Rohwer and Guy-Uriel E. Charles focus mostly on the implications of the First
Amendment reading of Grutter for racially sensitive admissions policies, and not on the
broader implications of Grutter as a First Amendment case.
For some pre-Grutter attempts to address these issues, see generally Alfred B. Gordon,
When the Classroom Speaks: A Public University's First Amendment Right to a Race-Conscious Class-
room Policy, 6 WASH. & LEE RACE & ETHNIC ANC. L.J. 57 (2000); Darlene C. Goring,
Affirmative Action and the First Amendment: The Attainment of a Diverse Student Body Is a Fermis-
, sible Exerthe of Institutional Autonomy, 47 U. KAN. L. REV. 591 (1999),
2005] Grutter 's First Amendment 467
The answers to that question are surprisingly wide-ranging. Grut-
ter, if read for all it is worth as a First Amendment opinion, yields a
wide harvest of potential implications for a variety of subjects, some
closely related to the First Amendment and others ranging farther
afield in constitutional law.
This Article offers three possible First Amendment readings of
Grutter and explores the implications of each of them. The first read-
ing suggests that Grittier provides First Amendment support for a
strong principle of institutional autonomy for academic institutions.
Read in this light, Grutter has a variety of interesting, sometimes con-
tradictory implications:
• Notwithstanding the contrary case law, Grutter suggests that uni-
versities may be entitled to greater latitude in formulating speech
codes to address racist, sexist, or other harassing speech on cam-
pus.
• Grutter offers new avenues for universities that, on academic
grounds, wish to curtail some forms of religious speech on campus.
• As some litigants quickly recognized, Grutter may help fuel argu-
ments against the Solomon Amendment, which forbids law
schools that receive public funding from barring on-campus re-
cruiting by the military. Thus, a recent decision by the U.S. Court
of Appeals for the Third Circuit invalidating the application of
the Solomon Amendment against law schools, although not rest-
ing solely on Grutter, was substantially buttressed by Justice San-
dra Day O'Connor's decision in that case.2t But a serious reading
of Grutter also suggests that many of the plaintiffs in the Third
Circuit case, and a number of plaintiffs in similar cases, lack
standing to assert claims against the Solomon Amendment that
are grounded expressly on &utter' s reading of academic free-
dom. And it raises broader questions about whether the Third
Circuit's decision would support a variety of outcomes that its
proponents might find less palatable.
• Ironically, Grutter supports universities' opposition to legislation
that would purport to enshrine the principles of academic free-
dom in the law.
• Despite the leading case on the subject, Grutter suggests that uni-
versities may be able to justify the maintenance of race-based
scholarship programs.
21 See Forum for Academic & Institutional Rights v. Rurrisfeld, 390 F.3d 219, 233-34 (3d
Cir. 2004).
468 Boston College Law Review [Vol. 46:461
• Grutter invites universities (or other higher educational institu-
dons, such as military academies) to revisit the constitutionality
of publicly supported single-sex schools. It also may provide a ba-
sis for arguments in favor of the maintenance of racially exclusive
institutions of higher education, without specific regard to the
race involved.
Looking at this list of possible extensions of Grutter makes a few
,things clear. First, each of these prospects should prove attractive to at
least some constitutional scholars. Second, it is unlikely that any indi-
vidual scholar will find all of them attractive. Third, some who sup-
port one of the potential outcomes listed above will find others on the
list utterly repugnant to their understanding of the First Amendment
or other constitutional values. Yet, on this reading,22 all of these appli-
cations of Grutter's First Amendment are compelled equally by the
logic of the decision."
These applications should persuade First Amendment scholars
that they need to make a proper home in their work for Bakke and
Grutter. Whatever explains the failure in First Amendment scholarship
to examine fully the implications of Bakke's institutional autonomy
theory of academic freedom, and now its sequel in Grutter, the omis-
sion should be remedied.
This is not the only available reading of Grutter's First Amend-
ment, however. A second reading of Grunter is grounded on a substan-
tive vision of academic freedom, and not simply on a morally neutral
support for institutional autonomy. On this reading, the Court in
Grutter treated academic freedom as serving larger democratic values,
rather than narrower truth-seeking values. 24
This substantive reading of Grutter's First Amendment is interest-
ing, and troubling, for several reasons. First, in advancing a substan-
tive, democratically oriented vision of academic freedom, Grutter pre-
sents interesting conflicts with the Court's broader rejection of a
substantive democratic or republican conception of free speech—or,
alternatively, it suggests that the Court paid little attention to the
significance of its own First Amendment language in Grutter. This
reading thus raises interesting questions of consistency between the
22 See infra notes 208-396 and accompanying text.
23 I stress the importance of the word logic" here. I do not mean to suggest that all of
these implications will follow from Gruttep—only that they could follow from Grutter, if its First
Amendment discussion is taken seriously. See infra notes 346-359 and accompanying text.
84 See infra notes 397-437 and accompanying text.
2005] Grutter's First Amendment 469
approach taken to the First Amendment in that case and the ap-
proach taken elsewhere in First Amendment doctrine. 25 Although an
argument could be made that Gruttei's view of the First Amendment is
consistent with the approach taken elsewhere by some of the majority,
one or more of the Justices in the majority clearly adopt a different
approach in most of their First Amendment jurispruderice. 28 Con-
versely, a number of the Justices who dissented in Grutter have been
described elsewhere as taking a strong view on the importance of in-
termediary institutions in the 1aw27—a position that is arguably consis-
tent with the majority in Grutter and inconsistent with the dissenters'
position in that case.
Third, this substantive reading of Grutter's First Amendment un-
derscores the vexing questions that the law of constitutional academic
freedom presents more generally. As this Article suggests, neither the
Supreme Court nor the lower courts have ever explained fully the
scope and meaning of constitutional academic freedom—or, rather, the
courts have alternated between extraordinarily sweeping statements
and narrow, qualified statements about the First Amendment bounds
of academic freedom. Nor have legal scholars been able to lend the
order and coherence to this area that the Court has not. 28 Thus, if the
substantive reading of academic freedom in Grutter seems inconsistent
or insecure, it is because the Court has offered no clear explanation of
what constitutional academic freedom is or ought to be. Moreover,
whatever meaning constitutional academic freedom may have, it is clear
that the professional conception of academic freedom on which the
Court has drawn is itself constantly changing and contested.
One response to either of these readings of Grutter is that the Su-
preme Court never meant anyone to take Grutter (or Bakke before it)
seriously as a First Amendment case, and will simply ignore the First
Amendment implications of Grutter in future cases.29 Perhaps Bakke and
" See infra notes 397-437 and accompanying text.
" See infra notes 438-471 and accompanying text.
27 See generally, e.g., John 0. McGinnis, Reviving Tocquevilles America: The Rehnquist
Court's Jurisprudence of Social Discovery, 90 CAL. L. REV. 485 (2002).
26 See Byrne, supra note 17, at 320 ("One reason that institutional academic freedom re-
mains little more than a potential constitutional right is that it has not been explained satis-
factorily by legal scholars."); see also Frederick Schauer, Towards an Institutional First Amend-
ment, 89 MINN. L. Rcv. (forthcoming 2005), available at http://ssrn.com/abstract=668521
(date posted Feb. 18, 2005).
29 Professor Byrne suggests the same thing about Bakke's First Amendment implications:
An early reader of Bakke could be pardoned if she doubted that the Court was
serious about a First Amendment right of institutional academic freedom.